Defense Logistics Council of American Federation of Government Employees Locals v. Federal Labor Relations Authority, 85-1743

• Decision Date: 27 January 1987
• Docket Number: No. 85-1743,85-1743
• Citation: 258 U.S.App.D.C. 115,810 F.2d 234
• Parties: 124 L.R.R.M. (BNA) 2425, 258 U.S.App.D.C. 115 DEFENSE LOGISTICS COUNCIL OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCALS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 234

810 F.2d 234

124 L.R.R.M. (BNA) 2425, 258 U.S.App.D.C. 115

DEFENSE LOGISTICS COUNCIL OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCALS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 85-1743.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 21, 1986.

Decided Jan. 27, 1987.

Stuart A. Kirsch, with whom Mark Roth, Washington, D.C., was on the brief, for petitioner.

William E. Persina, Associate Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., Steven H. Svartz, Deputy Sol., and Ira Sandron, Atty., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent.

Before EDWARDS and WILLIAMS, Circuit Judges, and GREEN, ^* District Judge.

Opinion for the Court filed by District Judge GREEN.

Opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.

JOYCE HENS GREEN, District Judge:

Petitioner Defense Logistics Council of American Federation of Government Employees Locals ("Union") seeks review of a decision of the Federal Labor Relations Authority ("FLRA" or "Authority") finding nonnegotiable a Union proposal to modify the procedures and standards implemented by the Defense Logistics Agency ("Agency") to prevent intoxicated driving on its federal military facilities. Considering the Union proposals as a package, the FLRA found that they directly interfered with management's right under the Federal Service Labor-Management Relations Statute, Civil Service Reform Act of 1978, Title VII, 5 U.S.C. Secs. 7101-7135 (1982 and Supp.1986), to determine its internal security practices, a right partially protected from bargaining by 5 U.S.C. Sec. 7106(a)(1). We affirm in part and reverse and remand in part.

I

In 1983, the Department of Defense implemented Directive 1010.7 ("Directive"), which established procedures for expedited suspension of the driving privileges of military personnel and others on federal installations on the basis of arrest reports and other official documentation of intoxicated driving incidents. The stated goal of the Department's coordinated program of education, identification, law enforcement, and treatment is "to reduce the number of fatalities and injuries suffered by [Department of Defense] personnel and the amount of property damage that result from intoxicated driving." Directive at 2, Joint Appendix ("J.A.") at 6. The Directive requires agencies to establish procedures for expeditiously suspending driving privileges on federal installations regardless of the location of the incident. Under the Directive, an agency must preliminarily suspend an employee's driving privileges when it learns of an arrest or other official documentation of such an incident; a one-year suspension "can be imposed upon conviction, imposition of nonjudicial punishment, or action by civilian authorities leading to suspension or revocation of the individual's driver's license." Directive at 3, J.A. at 7. An employee whose privileges have been preliminarily suspended can request a hearing within five days. Id. If the hearing official determines that law enforcement personnel had probable cause to believe that the employee was driving while intoxicated, then the preliminary suspension is continued until disposition of the original charge. Directive at 3-4, J.A. at 7-8. The Directive also provides additional penalties for refusal to take a blood alcohol test and for repeat offenses, as well as possible exemptions, for example, on the basis of mission requirements or unusual personal or family hardship. Directive, at 4-6, J.A. at 8-10.

In 1984, under its collective bargaining agreement with the Defense Logistics Agency, the Union presented a series of proposals for negotiation over the implementation of Directive 1010.7, essentially seeking greater procedural and substantive protection for employees who might be affected by the new policy. ¹ While agreeing to negotiate with the Union on some proposals, the Defense Logistics Agency declared most of the proposals non-negotiable. The Union then petitioned the FLRA for review.

The FLRA reasoned that the securing and safeguarding of personnel and physical property fall within the purview of an agency's right under 5 U.S.C. Sec. 7106(a)(1) to determine its internal security practices. Defense Logistics Council of AFGE Locals and Defense Logistics Agency, 20 FLRA 166, 168 (1986) (citing AFGE, Local 32 and Office of Personnel Management, 16 FLRA 40 (1984)). Treating the proposals as an inseverable package, the Authority determined that the Union proposals directly interfered with this right by, in certain circumstances, preventing the Agency from expeditiously suspending driving privileges, creating exceptions to the suspension policy, and prohibiting administrative action against an employee for traffic offenses not occurring on Agency premises. The FLRA concluded, therefore, that the proposals were nonnegotiable. Defense Logistics Council, 20 FLRA at 168-69. The Union petitions this court for review of the FLRA's decision.

II

Under the Federal Service Labor-Management Relations Statute, federal agencies must bargain in good faith with employees, 5 U.S.C. Sec. 7114(a)(4), over conditions of employment, 5 U.S.C. Sec. 7103(a)(12), (14), and implementation of any rules and regulations not otherwise exempted from negotiation, 5 U.S.C. Sec. 7117. Among the enumerated substantive management rights exempted from the general requirement of negotiation are the internal security practices of an agency, 5 U.S.C. Sec. 7106(a)(1). The procedures by which management exercises these rights however, are proper subjects of negotiation, 5 U.S.C. Sec. 7106(b)(2). ²

The Union argues that the Directive is not exempted from negotiation by 5 U.S.C. Sec. 7106(a)(1) because it does not involve internal security practices. ³ We find the FLRA's disposition of this threshold issue to be a reasonable one. "Internal security practices," by definition, comprise actions taken by management to control the risks of activities affecting the integrity and safety of the federal facility. The FLRA has interpreted this phrase to include an agency's plan to secure or safeguard its physical property against internal or external risk. AFGE, AFL-CIO, Local 32 and Office of Personnel Management, 14 FLRA 6 (1984), enforced on other grounds, FLRA v. Office of Personnel Management, 778 F.2d 844 (D.C.Cir.1985). In arguing that the Directive does not concern exempted internal security practices, the Union relies primarily on Department of Defense and Headquarters, Eighth U.S. Army Garrison, Youngsan Korea v. FLRA, 685 F.2d 641 (D.C.Cir.1982), in which this court held that vehicle registration and ration control for federal facility employees involved conditions of employment and not matters of internal security. In that case, however, the agency offered only a "far-fetched theory" in support of its argument that the regulation of those external matters implicated internal security. Id. at 648. The theory presented here is not so strained. To the contrary, the FLRA reasonably interpreted the term "internal security" to include a "preventive measure taken by the Agency to guard against [the] harm to its property and personnel" posed by intoxicated drivers. Defense Logistics Council, 20 FLRA at 168. The Authority properly concluded therefore that implementation of Directive 1010.7 implicates matters of internal security.

This conclusion does not mean, however, that Union proposals involving the Directive are necessarily nonnegotiable. The determination of whether a proposal involving an exempted matter is negotiable turns on whether it is deemed "substantive" or "procedural." While the distinction between these two classifications is "not always crisp," Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1151 (D.C.Cir.1981), cert. denied sub nom. AFGE, AFL-CIO v. FLRA, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982), the basic approach to analyzing proposals cast in procedural language is to determine whether they specify the criteria by which decisions must be made, or whether they have less direct substantive repercussions. Id. at 1152. If a proposal is found to be procedural, then it is nonnegotiable only if it would prevent the agency from "acting at all" in the exercise of reserved management rights. National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C.Cir.1968). Substantive proposals, on the other hand, are nonnegotiable if they "directly interfere" with agency decisionmaking. AFGE, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C.Cir.1983); Department of Defense, Army-Air Force Exchange Service, 659 F.2d at 1159. The direct interference test also applies to bargaining proposals that "stand close to the uncertain border between procedure and substance." National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 892 n. 8 (D.C.Cir.1982) (citing Department of Defense, Army-Air Force Exchange Service, 659 F.2d at 1159).

The demarcation of substance and procedure "involves questions of judgment and balance" usually best left to the discretion of the FLRA. AFGE, AFL-CIO, Local 1968 v. FLRA, 691 F.2d 565, 572 (D.C.Cir.1982), cert. denied, 461 U.S. 926, 103 S.Ct. 2085, 77 L.Ed.2d 927 (1983). Such deference is most appropriate when the Authority is exercising its "special function of applying the general provisions of the Act to the complexities" of federal labor relations. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983). Nonetheless, the FLRA's judgment cannot be upheld when it is arbitrary and capricious. 5 U.S.C. Sec. 7123(c) (review of FLRA orders to be made in accordance with 5 U.S.C. Sec. 706). "[W]hile reviewing courts should uphold reasonable and defensible constructions of an agency's enabling Act ... they must not 'rubber-stamp' ... administrative...